Clark Fork Coalition v. Tubbs, 2017 MT 184 (July 25, 2017) (Baker, J.; McKinnon, J., specially concurring) (5-0, rev’d)
Issue: Whether the Coalition was entitled to attorney fees under the private attorney general doctrine following it successful challenge to the DNRC’s exempt-well rule.
Short Answer: No.
Facts: The Clark Fork Coalition and other plaintiffs challenged a DNRC rule regarding groundwater appropriations exempt from permitting requirements (the exempt-well rule). The district court invalidated the rule and this Court affirmed. Clark Fork I, 2016 MT 229.
Prior to this Court’s decision in Clark Fork I, the Coalition had moved for fees under the PAG doctrine and the district court had granted the motion. The court held that the DNRC’s promulgation of the 1993 rule was not a quasi0judicial function, and reasoning that the litigation implicated constitutional interests.…